You don’t hear a great deal about Last.fm these days, in large part because it has been eclipsed by a myriad of new streaming music services. But on Wednesday the company announced that it had forged a deal with Spotify to bring the latter’s whole catalogue to Last.fm users. “Whether it be your own profile page, artist pages or album pages – if Spotify has it, you can play it and control it,” Last.fm promises, “via the Spotify playbar at the bottom of the screen.”
Some days earlier, news surfaced of another innovation. Last.fm is developing a beta player that accesses music on YouTube for its subscribers. A rather amusing Last.fm YouTube explains the feature, to the bemusement of at least one follower. “So what’s the point of paying a subscription fee if all I get is a YouTube video?” asks Reloaded 211. “I can just go to YouTube and look it up myself. This makes Last.fm pretty much useless.”
Well, not exactly. One gets a very different listening experience at Last.fm than ones does wandering about YouTubeland, and of course the company is experimenting with all kinds of content (e.g., Spotify). Brad Hill over at the Radio and Internet Newsletter (RAIN) notes that the YouTube move will save financially struggling Last.fm money.
“The tactical product change saves in the content-cost department, as YouTube handles rights management and royalty payments on the back end,” Hill writes.
But it appears that one ought not to traverse this route without some experience and support. A lone high school student named Luke Li decided that he would just up and develop a listening application that tapped into YouTube and investor beloved SoundCloud, and he got a little tap on the shoulder from the Recording Industry Association of America late last year.
“We demand that you immediately cease making this application available for distribution,” the RIAA wrote to Li. He quickly complied.
“I’m 18 years old, and I definitely do not want to get sued,” Li confessed in a December 31 blog post. “I am not a lawyer, so I’m not sure if this is exactly a cease-and-desist, but I definitely did not want to test the RIAA out on this case.”
To be fair, Li thought what lots of people might think. YouTube is protected by the Digital Millennium Copyright Act’s “safe harbor” policy. As long as the operation keeps a reasonable eye on infringing content and takes down illegal stuff when rightsholders complain, the service is in the clear. So under those circumstances why can’t smart high school kids with programming skills tap into the YouTube API and work their magic? Well, maybe they can. But if Li stuck to his guns, I’m guessing he would have had to prove to a judge and jury that he was keeping a top eye out for illegal content as well, which he probably didn’t have the staff for. So the wise lad resolved to get out while the getting was good.
All this raises larger issues. As better prepared music streaming companies tap into resources like YouTube and SoundCloud (hello plug.dj), these big repositories of audio will slowly morph into what amount to government protected public resources. To recap: the DMCA offers three crucial liability limiting safe harbor provisions to entities that allow user uploads (pdf, see page 12):
- The provider must not have the requisite level of knowledge that the material is infringing. The knowledge standard is the same as under the limitation for information residing on systems or networks.
- If the provider has the right and ability to control the infringing activity, the provider must not receive a financial benefit directly attributable to the activity.
- Upon receiving a notification of claimed infringement, the provider must expeditiously take down or block access to the material.
Without these provisions, it is safe to say that YouTube, SoundCloud, and similar entities would get the living bejeesus sued out of them and quickly cease to exist. These DMCA standards have thus far survived two concerted attacks. The first of these was Viacom’s $1 billion lawsuit against Google for infringement. Google won round one of this battle, but Viacom has appealed the case. Second was the failed Stop Online Piracy Act (SOPA), a crudely crafted law designed to end run the DMCA. It was stopped by public outrage.
If big sound/video repositories like YouTube and SoundCloud continue to expand thanks to vast armies of citizen uploaders, and more companies tap into them to provide creative services to the public, and the DMCA continues to survive, and the relationship between YouTube/SoundCloud and those smaller companies survives legal scrutiny, we will have come to an interesting place in the development of Internet radio. Entities like YouTube will have become quasi-public resources—state protected reservoirs of audio and video, if you will.
Think lakes, canals, forests, rivers, highways, the air waves. Welcome to the New Audio Commons. Where it goes after that, I am not sure.
We cover social music sharing communities every Monday in our Internet DJ feature.